Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 21, 2022

CASE NO(S).: OLT-21-001313

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: King & Benton Redevelopment Corporation

Appellant: Lee Hartwell

Subject: Consent

Property Address/Description: Part of Lot 11, Range 1 West of Plank Road

Municipality: Haldimand County

Municipal File No.: PLB-2021-103

OLT Lead Case No.: OLT-21-001313

OLT Case No.: OLT-21-001313

OLT Case Name: Hartwell v. Haldimand (County)

Heard: May 24, 2022 by Video Hearing ("VH")

APPEARANCES:

Parties	Counsel*/Representative
Lee Hartwell ("Appellant")	Self-represented
King & Benton Redevelopment Corporation ("Applicant")	David Bronskill*
Haldimand County ("County")	Sara Premi* and Woodward Mckaig*
Haudenosaunee Development Institute ("HDI")	Tim Gilbert*, Thomas Dumigan* and Dylan Gibbs*

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS AND ERIC S. CROWE ON MAY 24, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This case involves a Consent application to sever lands currently owned by the Canadian National Railway Company ("CN Rail"). The purpose of the Consent is to facilitate the sale of surplus CN Rail lands to the Applicant, who has indicated its intention to eventually redevelop the parcel for residential purposes (the "Subject Lands"). For the purposes of the present application and appeal hearing, CN Rail has assigned authorization to the Applicant to complete the proposed Consent.

2Following the County's public consultation process, the Committee of Adjustment ("COA") approved the Consent application with conditions to be fulfilled on or before July 20, 2022. The Appellant, an area resident, appealed the decision to the Tribunal on the following grounds:

• The proposed development will exacerbate existing land disputes and/or introduce new conflicts involving area Indigenous peoples, negatively impacting the area's residents' peaceful enjoyment of their properties; and,
• The proposed development will be harmful to the environment and exacerbate existing drainage issues, negatively impacting area residents.

3A hearing on the merits was heard on February 1, 2022. At that hearing, the Tribunal heard evidence from both Parties. However, approximately halfway through the proceedings, the Tribunal became aware that the Haudenosaunee Confederacy Chiefs Council (the "HCCC") had not received notice of the matter, nor had the Haudenosaunee Development Institute ("HDI"), which is sanctioned by the HCCC to act on authority of the HCCC with respect to development issues within the Haldimand Tract, which includes the entire Town of Caledonia ("Caledonia") and the Subject Lands.

4Upon receipt of this information, the Tribunal elected to carry on with the proceedings, receiving the Parties' complete evidence and submissions, but the Tribunal also proactively provided notice to HDI about the proceedings, offered an opportunity to apply for either party or participant status in the matter, and reserved any decision making until after HDI was provided with a meaningful opportunity to participate in the proceedings, if it chose to do so.

5On February 8, 2022, the Tribunal received a formal Party status request from HDI, together with extensive submissions in support of their request. As a result, a dedicated hearing was scheduled to hear HDI's request for Party status on February 25, 2022.

6At the outset of the February 25, 2022, hearing, the Applicant, the County and HDI requested an adjournment because they were actively negotiating a settlement of all outstanding issues, including potential Party status of HDI and what, if any, role HDI would take in the proceedings. The Appellant confirmed that he concurred with the proposed adjournment. As a result, upon request of the Parties, the Tribunal adjourned to Tuesday, May 24, 2022. More details respecting the above history of these proceedings can be found in the Tribunal's decision issued March 23, 2022.

7When the matter reconvened on May 24, 2022, the Applicant, the County and HDI confirmed that they had reached an agreement as follows:

• HDI would be added as a Party;
• HDI did not require the already completed evidence and Party submissions to be re-heard;
• The Applicant would be responsible for providing ongoing notice to HDI respecting any future development of the Subject Lands.

8The Appellant confirmed that he did not oppose the other Parties' agreement.

9The Tribunal found the Parties' agreement acceptable and proceeded on such a basis. The granting of Party status to HDI was based on written submissions received from HDI, marked as Exhibit 6. This essentially meant that the hearing was concluded, with the Tribunal having received all of the evidence and submissions on the merits at the original hearing on February 1, 2022.

10The Tribunal then decided the case and confirmed orally that the subject Consent is approved. The reasons are as follows.

Evidence and analysis

11The Appellant called Suzy Miller, Rick Coober, Sheri Gay and Colin Martin as lay witnesses. The Appellant also testified on his own behalf.

12In summary, the Appellant's witnesses discussed personal views on Indigenous Peoples' culture and treaty rights, questioned if there had ever been an archeological dig on the Subject Property, expressed concerns about water run-off, and raised environmental concerns respecting potential future development.

13The Tribunal finds that the Appellant's witnesses' testimony was helpful insofar as it alerted the Tribunal of the absence of notice to the HCCC and HDI. Beyond that, however, the Appellant's evidence was of limited assistance. For example, while the Appellant expressed concerns about potential environmental impacts of future development, no explanation was provided to illustrate how a severance would impact environmental considerations. Practically all of the testimony provided regarding environmental and run-off concerns was also purely speculative. Consequently, while the Tribunal understands that neighbouring residents are concerned, it finds that the evidence provided by the Appellant provided very little assistance from a land use planning perspective apart from the aforementioned issue respecting sufficient notice to area Indigenous peoples.

14It is noteworthy that, while the Appellant testified that a proposal for stacked townhouses was discussed at a pre-consultation meeting between the Applicant and the Municipality, such a development is not formally proposed currently and could not proceed without a Zoning By-law Amendment ("ZBA"). As a result, while a more impactful development may be contemplated by the Applicant, it is not a matter of immediate concern because the proposed severance is being sought without contingencies pertaining to any further development or ZBA.

15In support of the Consent Application, the Applicant called Matt Johnston, who was duly qualified as an expert in land use planning and provided uncontroverted evidence in his area of expertise.

The Subject Property and Surrounding Context

16Mr. Johnston testified that the Subject Property is legally known as Part of Lot 11, Range 1 West of Plank Road, Urban Area of Caledonia, Geographic Township of Seneca. There is no current civic address. It is unregular in shape with a frontage of 153.5 metres ("m") on Orkney Street and a small frontage (the width of a rail crossing) on Argyle Street. The Subject Lands can be generally described as flat with light vegetation.

17The Subject Property is predominately vacant, but it contains an active rail line that extends onto the adjacent properties to the North. Surrounding land uses include industrial to the north and east and residential to the south and west.

Consent to Sever Details

18Mr. Johnston testified that the Subject Lands are identified Urban Business Park ("UBP") and subject to Site Specific Policy Area special policy HAL-10 land use designation. The Subject Lands are also zoned "General Industrial (MG)" Zone, in the Haldimand County Zoning By-law No. HC 1-2020.

19The purpose of the Application is to sever the existing 5.9 hectares ('ha") parcel into two (2) lots. The severed lands (to be conveyed to the Applicant) are proposed to be irregular in shape and 3.4 ha in size, with 104.5 m of frontage on Orkney Street West and the small frontage on Argyle Street. The retained lands (to be kept by CN Rail) are proposed to be 2.48 ha in size and have 50.40 m of frontage on Orkney Street West. The severed lands will also be subject to a Registration of an Easement, providing access to the retained lands along the northeast rail corridor at the frontage on Argyle Street.

Planning Analysis

20Mr. Johnston testified that the applicable land use policy framework includes the Planning Act ("Act"), the Provincial Policy Statement ("PPS"), the Growth Plan for the Greater Golden Horseshoe ("Growth Plan"), the Haldimand County Official Plan ("OP") and the Haldimand County Zoning By-law No. HC 1-2020, as amended ("ZBL").

[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

21Section 2 of the Act lists matters of provincial interest that the Tribunal shall have regard to when carrying out its responsibilities under the Act. As it relates to this section, Mr. Johnston cited the following listed matters under s. 2 as being applicable to the present Application, with his comment below:

(a) the protection of ecological systems, including natural areas, features and functions;

• No significant natural heritage features exist on the property and no concerns in this regard have been raised by County staff through the review of the application.

(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;

• There is no knowledge of archeological resources existing on the property and no concerns in this regard have been raised by County staff through the review of the application.

(n) the resolution of planning conflicts involving public and private interests;

• The application was circulated in accordance with s. 53(5)(a) of the Act (despite generally accepting this opinion, the Tribunal notes the absence of notice provided to HDI, which was later rectified).

(p) the appropriate location of growth and development;

• The Subject Lands are located within the built up area of Caledonia and are currently vacant and, although no development is proposed at this time, he opined that the site is a good candidate for growth and development in the future.

22Summarily, Mr. Johnston opined that the subject of the Consent application has appropriate regard to matters of provincial interest in accordance with s. 2 of the Act. The Tribunal agrees and finds the same.

[Sections 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) and [53(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

23Section 51(24) of the Act lists matters that the Tribunal shall have regard to when considering a Consent Application. As it relates to this section, Mr. Johnston summarily opined that the Application has appropriate regard for all of the applicable matters listed.

24As it relates to s. 54(24)(c), insofar as whether the plan conforms with the OP, Mr. Johnston provided the following evidence/opinion.

25Mr. Johnston testified that the Subject Property is located in the built-up area of Caledonia and is identified within the Urban Business Park, Site Specific Policy Area HAL-10 designation of the OP as per Schedule B.1 Caledonia Urban Area Land Use Plan.

26He noted that there is an "Identified Trail Location" that runs along the frontage of the Subject Lands along Orkney Street. However, he opined, the proposed severance will have no adverse negative impact on this feature. The proposed easement to be registered on the severed lot in favour of CN Rail will also not cause any adverse impact on this feature.

27Mr. Johnston confirmed that a Consent to sever application is permitted within any designation unless otherwise noted, and so the present severance is permitted based on the subject OP designation.

28Mr. Johnston drew the Tribunal's attention to "Section 5 – Community Building Subsection H – Lot Creation (2)", which describes the County's direction for lot creation and gives power to the COA to approve the creation of a new lot through a variety of criteria. Said criteria is listed below, followed by Mr. Johnston's planning opinion.

2(a) The size of any parcel of land created by consent should be appropriate for the use proposed and the intent and purpose of the Official Plan and Zoning By-law are maintained;

• The proposed severance meets the general intent of the OP as described above. At this point in time, the application simply divides the lands while providing an easement to CN Rail, and any further development would be subject to a future application, subject to re-evaluation under the above noted OP policy to ensure that any application is compatible with the surrounding area (as it relates to the applicable ZBL, see Mr. Johnston's opinion further below in this decision).

2(b) The creation of new lots for development shall only be granted in accordance with the relevant servicing policies contained in this Plan;

• As no built forms are proposed at this time, no services are required or requested, although staff has identified that services are available for the site.

2(c) The proposed severed and retained land fronts on an existing public road that is of a reasonable standard of construction and give access would not create a traffic hazard because of limited sight lines on curves or grades. Direct access from provincial highways or arterial roads should be restricted where possible and residential lots should, where possible, have access only from collector or local roads;

• The proposed severed and retained land front on an existing public road that is of a reasonable standard of construction.

2(d) Not more than five lots are being created.

• The requested severance will create one lot.

29As it relates to the ZBL, Mr. Johnston testified that the Subject Property is located in the "General Industrial (MG)" Zone.

30Mr. Johnston testified that the minimum lot area pursuant to the ZBL is 1,855 square metres ("m²") (0.185 ha). He further confirmed that the lot area for the retained lands is approximately 2,500 m² (2.5 ha) and the proposed lot area for the lands to be severed is approximately 3,400 m² (3.4 ha). As a result, the application satisfies the requirements of the lot area.

31Mr. Johnston further testified that the minimum lot frontage pursuant to the ZBL is 30.0 m (Page 224, 252 of the PDF). The proposed lot frontage for the retained lands is approximately 49.0 m and 104.5 m for the severed lands. As a result, the application satisfies the requirements of lot frontage.

32Mr. Johnston again noted that there is no change of use proposed in association with the present application, so the ZBL provisions' association with use have not been considered.

33Mr. Johnston noted that, upon review of public comments and relevant policy documents, the County staff report similarly concluded that the application meets all of the policies and criteria of the OP, and the COA agreed.

34Summarily, Mr. Johnston opined that the subject Consent application has appropriate regard for matters identified at s. 51(24) of the Act. As it relates to s. 53(1), Mr. Johnston opined that a plan of subdivision is not necessary for the proper and orderly development of the Municipality.

35The Tribunal accepts the above evidence and opinion of Mr. Johnston, and similarly finds that the Consent Application has appropriate regards to matters listed at s. 51(24) of the Act, including conformity with the applicable OP and associated ZBL, and a plan of subdivision is not necessary for the proper and orderly development of the Municipality.

[Section 3(5)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

36Section 3(5) of the Act requires that a decision of the Tribunal be consistent with the PPS and conform with or not conflict with the Growth Plan.

Provincial Policy Statement

37The PPS encourages the establishment of healthy, liveable and safe communities and requires that sufficient land be made available to accommodate an appropriate range and mix of land uses.

38Mr. Johnston opined summarily that the proposed application is consistent with the PPS. He drew the Tribunal's attention to the following policies of the PPS, with comments following.

39Section 1.1.1 of the PPS provides policy direction in that healthy, liveable and safe communities that are sustained by:

(a) promoting efficient development and land use patterns, which sustain the financial well-being of the Province and municipalities over the long term;

• While there is nothing in the present application that goes beyond a mere severance of the Subject Lands, the application allows for a potential future planning application to develop an underutilized parcel of land, thereby assisting the financial well-being of the Province and Haldimand County.

(c) avoiding development and land use patterns, which may cause environmental or public health and safety concerns;

• No environmental concerns have been raised in the review of this application.

(d) avoiding development and land use patterns that would prevent the efficient expansion of settlement areas in those areas, which are adjacent or close to settlement areas;

• Although the application is strictly for a severance, it would allow the potential of a future planning application to develop this underutilized parcel, which is located within an established settlement area.

(g) ensuring that necessary infrastructure and public service facilities are or will be available to meet current and projected needs;

• The present Consent application is not dependant on the availability of public infrastructure or service facilities; however, County Staff have assured the Applicant that servicing is available if required in the future.

40Mr. Johnston further drew the Tribunal's attention to Policy 1.1.3.1 of the PPS, which states that "[s]ettlement Areas shall be the focus of growth and development". He opined again that, while no development is being proposed beyond a mere severance, the Subject Property is within the Urban Boundary and meets the definition of a Settlement Area, and so, upon completion of the severance, it will be poised for future development subject to the scrutiny of a future development application in accordance with the PPS.

41Mr. Johnston further drew the Tribunal's attention to PPS policies related to Airports, Rail and Marine Facilities. Such polices are in place to protect the long-term operation and economic role of these facilities. Mr. Johnston notes that the subject Consent application includes the registration of an easement in favour of CNR to maintain the rail line that passes through the site. With this easement, Mr. Johnston opined, the polices designed to protect the long-term and economic role of the rail line shall be protected.

42Concerning PPS policies associated with Natural Heritage features, Mr. Johnston confirmed that no natural heritage features exist on the Subject Property and no concerns in this regard have been raised by City staff through the review of the Consent application. The Subject Lands are not identified as a natural environment area in the OP or ZBL nor is it identified as a Provincially Significant Wetland or wetland.

43As it relates to Policy 2.6.5, which states "[p]lanning authorities shall engage with Indigenous communities and consider their interests when identifying, protecting and managing cultural heritage and archaeological resources", Mr. Johnston testified that the subject application was circulated in accordance with s. 53(5)(a) of the Act. However, as noted in this Decision and the previous Tribunal decision of this matter, this Tribunal found that insufficient notice was initially provided to the HCCC and/or HDI. However, as noted above in this Decision, that lack of notice has since been rectified to the satisfaction of HDI. As a result, the Tribunal finds that s. 2.6.5 of the PPS has now been satisfied.

44The Tribunal accepts the above-described evidence and opinion of Mr. Johnston and similarly finds that the subject Consent application is consistent with the PPS for the same reasons set out above.

Growth Plan for the Greater Golden Horseshoe ("Growth Plan")

45The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management in the Greater Golden Horseshoe Region.

46Mr. Johnston summarily opined that the subject Consent application conforms to the Growth Plan. Mr. Johnston drew the Tribunal's attention to the sections noted below.

47Mr. Johnston testified that s. 2.2.1.2 states that growth is to be directed to Settlement Areas and confirmed that the Subject Lands are defined as a Settlement Area. He pointed out, again, that while no development beyond the severance is proposed at this time, the Application remains in conformity with this section of the Growth Plan by positioning the Subject Lands to be developed in the future.

48Mr. Johnston testified that s. 2.2.1.4 outlines that the application of the Growth Plan shall "support the achievement of complete communities." He opined that the subject Consent application facilitates a later application in the development of an underutilized parcel, with access to full municipal services, thus, contributing to achieving complete communities.

49The Tribunal accepts the above-described evidence and opinion of Mr. Johnston and similarly finds that the subject Consent application conforms or does not conflict with the Growth Plan for the same reasons set out above.

Summary and Conclusion

50The Tribunal dismisses the appeal and otherwise finds that the subject Consent application constitutes good planning in the public interest.

51The Tribunal confirms that, in coming to its Decision, it has had due regard for the decision of the COA in accordance with s. 2.1(1) of the Act.

ORDER

52The Tribunal Orders that:

1. The Haudenosaunee Development Institute is granted Party status;
2. The owner of the Subject Lands, presently being the Applicant, shall provide notice to the Haudenosaunee Development Institute regarding any future application to develop the Subject Lands; and,
3. The appeal is dismissed and the provisional consent is to be given subject to the same conditions set out in the Committee of Adjustment decision dated July 20, 2021 (appended as Schedule 1 for reference), except the lapsing date set out at condition no. 6 shall be two years from the date of this Decision.

"K.R. Andrews"

K.R. ANDREWS MEMBER

"Eric S. Crowe"

ERIC S. CROWE MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE 1